Courts invited to speak up on rights

If the government has its way, the senior courts will soon have an express right to point out inconsistencies between legislation and the New Zealand Bill of Rights Act 1990 (NZBORA) and to hold Parliament to account.

We look at what it means and how it might work.

Proposed changes

A declaration of inconsistency with NZBORA is a declaration by a court that legislation is inconsistent with the human rights protected by NZBORA. Currently, the only similar power provided for by statute is the vetting role held by the Attorney-General.[1]

The proposed amendment will change NZBORA to specify that senior courts can make declarations of inconsistency. So far, this is no more than some recent judicial decisions have permitted.

What is new is that, in the event of a declaration of inconsistency, Parliament will be required to reconsider the relevant legislation. Parliament will then have the option to either amend or repeal the law, or to retain the status quo.

Wider context

News of this change comes just before the Supreme Court will consider in Attorney-General v Taylor whether the courts (in the absence of a statutory power to do so) have an inherent power to grant declarations of inconsistency with NZBORA.

In Taylor, the High Court made a declaration that a provision in the Electoral Act 1993 preventing all prisoners from voting was inconsistent with the right to vote protected by NZBORA. Justice Heath considered that the declaration was “firmly grounded in the obligation of the Court to declare the true legal position”.[2]

The Court of Appeal upheld the High Court decision in Taylor, commenting that in some situations a declaration of inconsistency may be necessary “… to emphasise that the legislation needs reconsidering or to vindicate the right”.[3]

Prior to Taylor, the existence of jurisdiction to grant a declaration of inconsistency has been one of the more hotly contested, if theoretical, questions of NZBORA law. The courts had traditionally been reluctant to grant such declarations in the context of a human rights statute that does not specifically provide for formal declarations, although acknowledging that indications of inconsistency with NZBORA may be useful to Parliament, and that the courts play an important role in identifying inconsistencies to Parliament through their judgments.[4]

Chapman Tripp comment

It is well-established that the courts will not interfere in Parliamentary processes (this is sometimes referred to as the comity principle). The question for some time has been whether making an express declaration of inconsistency constitutes interference or legitimate constitutional ‘conversation’ between different branches of government. This statutory change will confirm that the Court’s role of declaring what the law is does extend to informing Parliament about issues with legislation, albeit in a limited context.

Traditionalists may express concern that the new jurisdiction will inevitably draw the judiciary into the political domain. This risk can, however, be overstated: the reality is that courts routinely scrutinise consistency of legislation with NZBORA in interpretative disputes, and the new jurisdiction will not change the underlying matters on which the courts are called upon to adjudicate.

Indeed, by Parliament inviting the courts to issue formal declarations on such matters, the jurisprudence is put on a sounder footing. Importantly, the legislative proposal commits Parliament to respond to a declaration of inconsistency, even if it is only to maintain the status quo legislation.

This further step may be of more practical significance than confirmation that the declaratory power exists. The United Kingdom provides an interesting source of comparison. The UK Human Rights Act 1998, which incorporates into UK law the European Convention on Human Rights, contains a specific provision providing for declarations of incompatibility with the Convention. Similarly, the Human Rights Act commits Parliament to respond to a declaration. Statistics show that the UK Parliament has usually made a change to legislation in response to a declaration of incompatibility.[5] Whether the New Zealand Parliament will be as responsive to declarations of inconsistency remains to be seen.